News media activities are exempt from the strictures of the Privacy Act, which generally requires that people gather information directly from those concerned, explain what they’ll do with it, keep and securely, and don’t use or disclose it for unauthorised purposes. The Privacy Act also allows those affected to access information about them, and seek to correct it if it’s wrong. The media lobbied hard for exclusion from these rules, arguing that they would make the media’s task unworkable.

Parliament agreed, and journalists breathed a sigh of relief. But what does this mean for authors of non-fiction books? Are they part of the media? Or are they subject to the Privacy Act?

Justice Winkemann, the Chief High Court Judge, has ruled that authors of non-fiction books are not exempt from the Privacy Act (see paras 56-78). That means (among other things) when authors gather material about people, they have to turn it over to them on request, unless some other exception applies. (Note, though, that there are some source-protection provisions).

The ruling came in the context of Kim Dotcom’s case against the government, alleging it illegally spied on him and raided his property. As is standard procedure in civil lawsuits, the government sought access to of all relevant documents in the possession or control of Dotcom. It argued that these should include relevant documents about Dotcom held by his biographer, journalist David Fisher - for example, notes of interviews. You might wonder why that is, given that Fisher was holding those documents. (Incidentally, there would have been nothing to stop the government applying for third party discovery against Fisher). The government argued that Fisher’s documents were within Dotcom’s “control” since he had a legal right of access to them. How? Through the Privacy Act. Dotcom could ask Fisher for access to documents about him. So he effectively controlled them, and should have to turn them over to the government.

Dotcom argued that he didn’t have the right to see the documents, since Fisher fell within the news media exemption. As we know, Winkelmann J ruled against him.

This ruling has attracted a storm of criticism because of the difficulties it creates for authors. I think there’s some truth in that. Though we should bear in mind that there are two mainstream media organisations that are already subject to the access rights in the Privacy Act: Radio NZ and TVNZ. They hate this. And they fight against requests. But they are subject to the access requirements and the sky hasn’t fallen (largely, I suspect, because hardly anyone knows about these access rights).

My criticism is different. I think the judge got this one flat wrong.

She begins by finding that David Fisher, himself, is an agency, and is therefore subject to the Privacy Act. Since the definition includes people, she’s surely right about that. The big question is whether he counts as a news medium, and therefore is exempted. A news medium is:

any agency whose business, or part of whose business, consists of a news activity

So what’s a news activity?

(a) The gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public:

(b) The dissemination to the public or any section of the public, of any article or programme of or concerning –

(i) News:

(ii) Observations on news:

(iii) Current affairs.

The judge concludes that David Fisher doesn’t fall within this definition. Here’s why:

First, Mr Fisher’s authorship of the book was not undertaken by a “news medium”. It is true that Mr Fisher is a journalist working for a news medium, the New Zealand Herald, and that in that capacity he has written extensively on Mr Dotcom. But his book on Mr Dotcom is not affiliated with the Herald, and was published by an independent publishing agency. There can be no suggestion that Mr Fisher is himself a news medium as that phase is defined in the Privacy Act.

My second reason is that the writing and publication of a book cannot, at least in this instance, be construed as news activity. The definition of news activity protects two different forms of journalistic endeavour in its two limbs: preparing stories and disseminating stories. The first limb protects gathering, preparing, compiling, and making of observations on news, for the purpose of dissemination. The second limb protects the dissemination of the prepared story, provided it is about news, observations on news or current affairs. The end product of the two activities is specifically provided for in the definition: articles and programmes. Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.

I think both of these reasons are wrong. Let’s start with the first reason. The judge says “there can be no suggestion that Mr Fisher is himself a news medium as that phrase is defined in the Privacy Act”. Why not? After all, he’s an agency, as the judge finds. Writing a book for commercial sale is certainly his business, or at least part of his business. There’s an issue about whether that business is a news activity, but that’s the judge’s second reason. That aside, there seems to be no reason for not treating Fisher as a news medium.

In other words, I don’t think the judge has two reasons at all. They both collapse into one. Was what David Fisher was doing a “news activity”?

The judge recognises that the definition contains two limbs: “two different forms of journalistic endeavour: preparing stories and disseminating stories”. Right. And it follows that he only has to be doing one of these to come under the definition. If he satisfies either one of them, he can be a news medium.

The judge says that “the end product is specifically provided for in the definition: articles and programmes. Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.”

It’s true that books aren’t mentioned in the definitions. But are they excluded? They certainly seem to be excluded from the second limb of the definition, because it only applies to “any article or programme.”

But - and here’s my point - books are not specifically excluded from the first limb. Let’s look at it again:

The gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public…

Notice the “or” (which I’ve conveniently highlighted). This definition isn’t a model of clarity. But it is clear that “gathering of news” need not be connected with the “compiling of articles or programmes” for the definition to be satisfied. The gathering of news for the purposes of dissemination to the public will be enough.

So the really interesting issue is whether researching a book on a topical issue is “the gathering of news”. And the judge does not address that issue at all.

I suppose it might be said that “news” is more high-turnover, transient and perishable than can be encompassed in the activity of producing a book. But as the judge points out, long-form journalism is contemplated in the definition. And the Bill of Rights requires statutes to be read consistently with the right to freedom of expression if possible. I think there’s a compelling argument that the gathering of news can include research for a topical non-fiction book.

Alas, that ship has sailed. My understanding is that there is to be no appeal, so this stands as the law unless and until it is reformed by Parliament or revisited by the courts.

11 Responses to “Throwing the book at the Chief Judge”

Isn’t the real problem here the use of the Privacy Act as a tool of discovery? - I’d be interested in your thoughts on the judge’s decision on that aspect of the case. That seems to me to be where the main problem lies.

On the news media exemption aspect - while you may be right on the law, I’m not sure that people have given enough thought to the implications in policy terms of including books in the news media exemption. The news media exemption is a complete exemption for the news media - it doesn’t just apply to rights of access under principle 6 of the Privacy Act. So if writers of books can be covered by the news media exemption, they will also be free, for example, to disclose personal information in breach of principle 11. At the same time, they won’t be subject to complaints to the Press Council, Broadcasting Standards Authority or Online Media Standards Authority. Is that really what we want? Sure, there is still the remedy of suing in the courts for breach of privacy, but that’s not a very accessible remedy.

RE Privacy Act as a tool of discovery. I agree it’s problematic, as we may see in this very case. The next step must be for Dotcom to seek the information from Fisher. What if he refuses? Must Dotcom complain to the Privacy Commissioner?

On the other hand, I’m not sure the judge was wrong to conclude that the material was legally accessible to Dotcom. This will create problems for authors: if they fall out with their subjects and sources, they may need to turn over their research material about them. But as pointed out, this is the same boat that TVNZ and Radio NZ are in (although they are specifically given source protection).

As for the implications of including authors in the news media exemption: what about the implications of excluding them? Authors are now generally required to collect information directly from the person concerned, tell them exactly how it will be used, tell them about their rights of access, store it securely, check it for accuracy, relevance, completeness and currency before using it, provide rights of correction, destroy it when it’s no longer relevant, and use and disclose it only for the purposes for which it was collected. Exceptions may of course apply in some cases, though it’s not clear how many of them would apply to authors. They certainly weren’t written with authors in mind…

Also your comments and the comments from people like Russell Brown seem to contain an implicit assumption that a special status attaches to someone if they’ve become a journalist, regardless of what activity they’re involved in.

I think society is done a disservice if you start applying protections to other forms of media without the attendant obligations (such as to be fair and balanced). Even a causal glances at Mr Brown’s blog will show you it is not balanced (and not news). Likewise if you conducted a longitudinal study of all biography published in NZ over the last 200 years I’m fairly certain it would fail any objective test for being news. (I’m sure a disproportionate amount of it would be ghost written accounts of sports peoples lives with little of no news value).

I see the same problem when academics speak in the media. A good example is Dr Mike Joy whose science is apparently impeccable but whose comments to the media are biased and inflammatory (and damage his cause). Any scientific publication has to met standards, but the public utterances of scientists don’t.

I think it is probably a good result that this stands as law until a broader examination leads to new legislation.

Where to start? My reasoning about Fisher isn’t about the fact that he’s a journalist. It’s that he’s researching a non-fiction book about Dotcom. The issue is whether that’s a news activity. If it’s not, then the Privacy Act strictures apply. I think authors of any non-fiction book are going to find them extremely constraining. You don’t explain how they can do their job faced by those restraints.

Part of the definition in the Privacy Act also includes observations on news, so I’m afraid that includes comments, which are often unbalanced. The fact that you might consider a columnist or commentator to be biased does not prevent their work from receiving this protection if the definition is otherwise satisfied.

Anyway, the Dotcom bio (and Russell Brown’s blog for that matter) are more balanced and accurate than some of what’s available in mainstream media, even without an ethics complaints body in the background. (I have to say I think Russell Brown’s blog - with his readiness to correct inaccuracies and openness to debate in the threads that follow - is about as accurate, fair and balanced as blogs get. He also occasionally breaks news. He routinely comments on current affairs. I don’t know how you can exclude him from any definition of news.)

Books have never been subject to complaints bodies. Has that caused any problems you’re aware of?

I managed to leave University with both a Science and Social Science qualification and apart from the self loathing perhaps the biggest influence it has had on my life is a belief that there is no such thing as non-fiction. History is written by the winner, and the mechanisms and institutions to protect the truth are as strong as the weakest link. Everything is a fiction. The value of truth is subjective and comes from how well the author manages to identify their own bias. I presume your background gives you a bias where things can be established as a “fact” through a legal process. This is to me a special (and beautiful) kind of fiction.

If we are to take the concept of a non-fiction book, let’s compare Jock Philips’ _Man’s country? The image of the pakeha male, a history_ vs Nicky Hager’s _The Hollow Men: A study in the politics of deception_. My position would be that they’re not the same type of cultural or economic artefact. A reasonable person is likely to find Man’s Country to be more true because of Jock Philips’ mana and the fact the intent was to enrich society. The Hollow Men is a different story, its intent is either to cash in on something that *was* in the news, or it’s to further a cause that Hager feels passionate about. Hager has nowhere the mana of Philips, and few would hold a belief that Hollow men is as serious a work of historical study as Man’s Country. Should Hager attract additional legal protection because his subject *was* news. You can correct me but I’m assuming that if you can argue your subject is news, then you can garner more protection against being found to be defaming based on a defence of public interest. Why should we offer Hager protections we don’t offer Philips?

As to your point about Mr Brown engaging in debate about his posts. To do this you have to join Public Address. Personally I want to join his “people like us” as much as I want to be a Freemason. The openness is as open as his particular cliché. I’m sure people who express opinions completely counter to the “people like us” end up having their membership revoked. This fuss over books by journalists feels to me like the same thing. People like us must be protected.

I think that Ewan may be right and that the problem is the Privacy Act. And I’m more pre-disposed to thinking the we have a problem in the Privacy Act given the Privacy Commissioner’s recent blog post on a right to be forgotten. Perhaps the Privacy Act is leading to a sort of cultural vandalism that we should be stemming.

Well, Glassboy, at least you can’t be accused of not letting your own biases come shining through.

For my part, I agree that no-one is free of bias. But I think Hager’s book (which I vetted) is an important and well-sourced contribution to the debate about politics, and apart from a couple of minor quibbles from Don Brash, has not been challenged on its facts, which isn’t surprising since he got them from leaked documents.

You talk about Hager “garnering more protection against being found to be defaming based on a defence of public interest”. This discussion is about the Privacy Act, so I’ve got no idea where that’s coming from. Though as it happens, the courts do - as they should - accord more protection to political speech than other forms of speech.

To “join Public Address” you have to register to comment, as you’ve done here. I’m happy to make it clear that in doing so, you are by no means declaring like-mindedness with me. Just to bring you back to the point: you accused him of being unbalanced. No news organisation that openly invited critical response as he does could be accused of lack of balance.

Again: I’m not talking about “books by journalists”. Parliament has given protection to news gathering. We have to interpret that. I’m in favour of giving it a wide definition, whoever’s doing it. In part, that’s because I think it’s important to encourage the flow of information from people who want to write about current affairs.

If it were up to me, I’d extend it to include historians. But it’s not. We’re interpreting an Act of Parliament here.

You say that people like you must be protected - presumably against unscrupulous book authors. Of course, such authors are still subject to the ordinary laws such as defamation and the tort of invasion of privacy. No doubt you’ll readily be able to give examples of all the “people like you” who have been harmed by non-fiction authors breaching the Privacy Act…?

Steven, I actually agree with you that there’s a good case for including some books in the news media exemption from the Privacy Act. I’m just concerned that people have been jumping from a quite reasonable concern about this particular case to the conclusion that the answer must be that books should be covered by the exemption (and indeed that it’s self-evidently absurd that they’re not). I suggest it may not be quite as simple as just saying books should be able to benefit from the news media exemption. There are a number of points I think are worth considering.

First, I still think the main problem in this case is the use of the right of access under the Privacy Act as a tool of discovery. That turns something that should be a right into an obligation, and I think that is fundamentally wrong. I suggest that any call for law reform should address this issue before, or at least alongside, proposals for reform of the news media exemption. (I realise that you’re making an argument about what the law currently is, but I’m more concerned with what it should be.)

Second, I come back to my point that the news media exemption is a complete exemption from the Privacy Act’s coverage. Perhaps we should be looking at an exemption that is broader in some respects but also more nuanced? For example, section 32 of the Data Protection Act 1998 (UK) provides an exemption covering ‘journalistic, literary or artistic material’, but it is also not a complete exemption as the news media exemption in our Privacy Act is.

Third, it’s only true that ‘books have never been subject to complaints bodies’ if your argument about the Privacy Act is correct. I think it has been generally assumed that in fact books are subject to a complaints process if they breach informational privacy - that process being complaint to the Privacy Commissioner. At any rate, it has never been clear that they are not subject to the Privacy Commissioner process.

Fourth, I don’t think it’s quite good enough to suggest there have never been problems with books breaching privacy and therefore there’s no need for a complaints process in relation to books. Don’t we need a more principled reason as to why books that deal with ‘news’ should be the only category of publication that is not covered by any non-court complaints process? And no, I can’t think off the top of my head of a case where the lack of a complaints body for books has caused a problem. But it’s surely not controversial to suggest that a book could breach someone’s privacy? The singer Loreena McKennitt argued in the UK that her privacy had been breached by a book (admittedly in a tort/breach of confidence case, not a data protection case).

I’m not sure why you’ve decided to play the man not the ball. If I said something to personally offended you I apologise.

To clarify I didn’t say that I felt that I needed protection from a non-fiction author. My meaning was that the opposition to this ruling all seems to be from a group of people that identify with Fisher. If there is more written about the topic by someone other than a journalist who has written a book, can you provide links.

Also as you raised the subject, the recent books on MH370 disappearance would seem to be examples of where people have felt their privacy to be breached by unscrupulous authors. Is your opinion different when these are taken into account?

And as an aside would you also say that Kiwiblog and Whaleoil are balanced news organisations? Both occasionally break stories and the proprietors engage in dialog with commenters.

And back to the Privacy Act, as far as I can tell our Acts of Parliament don’t spell out what either news or non-fiction mean. Both could be said to be publishing industry marketing terms. The less problematic term would seem to be current affairs. News and current affairs both would seem to speak to your point about “transient and perishable”. Is a book written a year or so after really current?

The temporal nature of news is also at the heart of the Google Spain and the right to be forgotten debate. Have you read what Judge Harvey has written about it? (http://theitcountreyjustice.wordpress.com/2014/05/22/back-to-the-future-google-spain-and-the-restoration-of-partial-and-practical-obscurity/)

Ewan:
Sure. And I’m not saying that all books fall under the exemption, or that they should, just that there’s a very good case for saying this one does. My post isn’t a policy discussion about how far the Privacy Act should stretch, though I admit it opens up that question.

But anyway, I had in mind general ethics complaints bodies, like the Press Council. Even now, the Privacy Commissioner will have very limited ability to control ethical lapses by authors. There’s a very serious question about whether Privacy Commissioner - who deals largely with data management issues - is the right person to investigate book privacy breaches. I note that there is no public interest defence in the Privacy Act. The Privacy principles applied by the Broadcasting Standards Authority and the courts (which are very similar) are quite different to the Information Privacy Principles in the Privacy Act, which were not designed with books or news media in mind. Any advantage for complainants is, I think, far overcome by the downside for authors who take the Privacy Act’s strictures seriously (though I have to admit, I doubt many will).

Glassboy:
I thought I was mostly playing the ball. But you can expect some prickliness from me if you casually denigrate other people without giving your real name, portray your own opinions as objectively true while accusing others of bias, and make comments on the law that show you don’t really know what you’re talking about.

I don’t have time to respond to all your points. But I think your example of the books about MH370 is worth exploring. You assume that giving the Privacy Commissioner a complaints power over such books would be a good thing. Let’s put aside the jurisdiction problems when such books are published overseas. Which Information Privacy Principles do you think those books breached? My impression is that the families felt it was too soon and too offensive to write the books and advance the authors’ theories rather than the collection and disclosure of particular personal information about them. The Privacy Act isn’t a fix-all for all privacy issues, and as I’ve pointed out above, it simply isn’t designed for the complex interplay with free expression rights that’s needed in media cases (and that includes books like Fisher’s).

You seem perfectly comfortable, anyway, with the notion that such books should be subject to the Information Privacy Principles. My point is that if you take them seriously, those books may not be able to be written at all.

Hi Steven you seem to be jumping to a lot of conclusions what I think and what my aims were. You’re also being a trifle disingenuous. As you point out you have my log on details, so you have my real name or at least the ability to discover it. Searching on my non de plume will also pretty quickly reveal my name.

You said “I think there’s a compelling argument that the gathering of news can include research for a topical non-fiction book”. I think you made a lot of interesting points, but I don’t think you made a compelling argument. I thought you were actually prompting a much wider conversation - and I get the sense that Ewan did to. I was hoping that you fill in the holes in your post.

The Privacy Act has a much greater reach than just journalists, and media law experts. There are a lot of people who have to apply the Privacy Act in practice. I think a wider conversation would be useful.

I seem to have made a mistake in assuming that because your blog allows comments, that it’s actually open for comment. I’ll stick to just reading your posts in the future.